§ 18.1 - Introduction

• Jurisdiction: Washington

§18.1 Introduction

SECTION 1 DECLARATION OF STATE OWNERSHIP. The state of Washington asserts its ownership to the beds and shores of all navigable waters in the state up to and including the line of ordinary high tide, in waters where the tide ebbs and flows, and up to and including the line of ordinary high water within the banks of all navigable rivers and lakes: Provided, that this section shall not be construed so as to debar any person from asserting his claim to vested rights in the courts of the state.

Wash. Const., art. XVII, §1.

The tide and shore-lands in the State of Washington shall be appraised, and the same shall be disposed of by the commissioner of public lands as in this act provided, which are not by the constitution and laws of the state reserved from sale.

Laws of 1889-90, p. 431, §1.

"[T]itle to the shore and lands under water is regarded as incidental to the sovereignty of the state—a portion of the royalties belonging thereto, and held in trust for the public purposes of navigation and fishery...."

Baer v. Moran Bros. Co., 2 Wash. 608, 613, 27 P. 470 (1891) (quoting Hardin v. Jordan, 140 U.S. 371, 381, 11 S. Ct. 808, 35 L. Ed. 428 (1891)), aff'd, 153 U.S. 287, 14 S. Ct. 823, 38 L. Ed. 718 (1894).

These three quotes excellently illustrate the competing forces at play in Washington law since statehood regarding the use and disposition of state-owned aquatic lands. These quotes reflect the tension between the state's assertion of proprietary authority over its lands—including the right to dispose of those lands—and the Public Trust Doctrine principle that aquatic lands are forever encumbered with certain public interests that must be preserved, even if those lands have been transferred to private ownership. This chapter excavates the origins of the Public Trust Doctrine and analyzes the...